Hallmark Builders, Inc. v. Anthony

• Decision Date: 31 January 1977
• Docket Number: No. 8698,8698
• Citation: 547 S.W.2d 681
• Parties: HALLMARK BUILDERS, INC., et al., Appellants, v. L. L. ANTHONY dba Anthony Electric, Appellee.
• Court: Texas Court of Appeals

Page 681

547 S.W.2d 681

HALLMARK BUILDERS, INC., et al., Appellants, v. L. L. ANTHONY dba Anthony Electric, Appellee.

No. 8698.

Court of Civil Appeals of Texas, Amarillo.

Jan. 31, 1977.

Rehearing Denied March 21, 1977.

Gibson, Ochsner, Adkins, Harlan & Hankins (Wayne P. Sturdivant) Amarillo, for appellant.

Billy Britt Jarvis, Spearman, for appellee.

ELLIS, Chief Justice.

This appeal arose out of a suit in quantum meruit by an electrical subcontractor against a general contractor. The case was tried without a jury and the trial court rendered judgment favorable to the plaintiff subcontractor. The defendant contractor challenges the evidentiary support for the trial court's findings upon which the judgment was based. Reversed and remanded.

L. L. Anthony dba Anthony Electric, the subcontractor, performed electrical work and furnished electrical materials in the construction of three buildings by Hallmark Builders, Inc., a general contractor, for the owners. These buildings, used for "Dairy Queen" business establishments, are located in Spearman, Stratford and Gruver, Texas. In 1973, Anthony entered into a written contract with Hallmark to perform the electrical work on the Spearman Dairy Queen. This project was finished in July, 1973. The total contract price paid by Hallmark for the electrical work on the Spearman project was $4,600.00.

In the latter part of 1973 and the early part of 1974, Anthony commenced the electrical work on the Stratford and Gruver Dairy Queen buildings without a written contract. The electrical work required for each of the Stratford and Gruver Dairy Queen buildings was substantially the same as that required for the earlier Spearman project.

Upon completion of the Stratford and Gruver Dairy Queen projects, Anthony billed Hallmark for the sum of $6,050.00 on each of the Stratford and Gruver projects for the electrical work and materials furnished. Hallmark paid Anthony $3,000.00 on each project, leaving the sum of $6,100.00 ($3,050.00 on each project) as the amount which Anthony claimed to be due and owing by Hallmark.

The trial court found that the reasonable value of the work done on the Stratford and Gruver Dairy Queens, respectively, was $6,050.00 for each project. After deducting payments already made by Hallmark, the trial court rendered judgment against Hallmark for $6,100.00, plus attorney's fees. Hallmark predicates its appeal on three points of errors, contending that there is (1) no evidence, or (2) factual insufficiency of the evidence to support the trial court's finding as to the reasonable value of the work performed on the two projects, or (3) such finding is so against the great weight and preponderance of the evidence as to be unjust.

In order to recover in a quantum meruit suit, the plaintiff must establish by competent evidence the reasonable value of the services performed and the materials furnished. See Colbert v. Dallas Joint Stock Land Bank,136 Tex. 268, 150 S.W.2d 771 (1941). In seeking to establish the reasonable value of Anthony's work in connection with the construction of the two Dairy Queen buildings, Anthony identified five exhibits as the material lists for the Stratford and Gruver jobs. These exhibits, said to be "invoices" were compiled from original records. Anthony testified:

. . . when we work on a job we normally write down all the material we use every day, in a note book. And, then, when the job is completed my secretary, or myself, list it on invoices like this.

It is noted that the respective exhibits (invoices) submitted cover "Stratford & Gruver Dairy Queen," apparently listing all of the items, including materials, total working days of labor and total mileage, for both jobs. The exhibits listing items and charges do not show specific dates as to when each "item" listed was furnished, or when work was performed or when the invoice was compiled. Anthony further testified that the invoices were written up after the two jobs were over in July of 1974 and were made up from pads carried in the trucks. These pads or note books above mentioned were not introduced in evidence. The testimony of Anthony shows that the Stratford job was started in December, 1973 and finished in April of 1974, while the Gruver job was started in January, 1974 and finished in July of 1974.

Hallmark objected to the introduction of these exhibits on the grounds that they were not business records but were summaries of business records and that the business records (note books) were not before the court. The above described five invoices were admitted into evidence over Hallmark's objections to the effect that such invoices were hearsay and did not properly come within the business records exception to the hearsay rule.

Anthony contends that the evidence supports the trial court's finding on the basis of the business records exception to the hearsay rule under Article 3737e, Vernon's Ann.Tex.St., which, in part, provides:

Section 1. A memorandum or record of an act, event or condition shall, insofar as relevant, be competent evidence of the occurrence of the act or event or the existence of the condition if the judge finds that:

(a) It was made in the regular course of business;

(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record;

(c) It was made at or near the time of the act, event or condition or reasonably soon thereafter.

It is our opinion that the above described five exhibits were not admissible as an exception to the hearsay rule under the Business Records Act (Art. 3737e, supra), and that any testimony predicated on such exhibits was inadmissible as hearsay. See Lewis v. Southmore Savings Association, 480 S.W.2d 180 (Tex.1972) and cases cited therein. Although Anthony testified that notations were made regarding the materials as the job progressed, such memoranda was not contained in the exhibits (invoices) introduced but instead were kept on notes or pads which were not available because they were usually destroyed after the invoices were prepared. The exhibits introduced were not the records made or at near the time of the act but were summaries of the records and the underlying or supporting records were not introduced into evidence or available at the trial.

In discussing the admissibility of evidence summarizing the contents of voluminous documents in the case of Lewis v. Southmore Savings Association, supra, the Supreme Court stated:

The witness may testify of his extractions or of a net balance of accounts, but the full documents or records must "be placed at hand in court, or at least be made accessible to the opposing party, in order that the correctness of the...